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Friday, June 21, 2013

USAID Implications

Reading through the Court's opinion in Agency for International Development v. Alliance for Open Society International, Inc., I wondered whether the Court's reasoning has significant implications for states' efforts to limit funding for social service provision to groups that do not violate state antidiscrimination laws in the face of claims by religious groups and individuals that refusing to recognize gay marriage is a core part of their religious freedom.

As I understand the Court's logic in the US AID case, if the government cannot mandate something without violating the First Amendment's protection of speech (e.g., opposition to prostitution and sex trafficking), it cannot condition receipt of funds on acceptance of that mandate unless the conditional mandate "define[s] the lmits of the government spending program."

Now, it seems likely that a majority on the Court would conclude that the First Amendment, either through the free exercise clause or the associational freedom dimensions of the speech clause or the "ministerial exception" grants some religous groups the right to discriminate in at least some employment contexts against gay people.

If a state wants to fund adoption programs that are, say, open to same-sex couples on a non-discriminatory basis, it can (consistent with the logic of USAID, as I understand it) withhold funds from groups who refuse to comply with that requirement because the condition defines the scope of the program the state wants to fund. On the other hand, if it limits its funding for soup-kitchens to, say, groups that provide health benefits to same-sex partners (or spouses) or that have qualifying nondiscriminatory employment policies, then the state would seem to run afoul of the Court's unconstitutional conditions logic.

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Comments

I don't see that you're missing anything. However, here's a somewhat unsatisfactory work-around that I think is possible under this decision. As I understand it, the Court's worried about the government "leveraging" funding to get recipients of funds to say certain things, though strangely, given that that's the Court's worry, it doesn't seem to care how coercive or inducive the funding is. It seems to me then that so long as the funding condition is backward-looking, it ought to pass this test, because if it's backward-looking it can't leverage. So, on this reading of AID, what Congress could have done is said that it would only give money to NGO's that, on the date it enacted the statute, had an anti-prostitution policy. Such a statute wouldn't induce anyone to do anything because it would only look to organizational policies in existence before the statute's passage. Likewise, states could deny funding to groups that discriminate on the day the state passes a statute setting up the funding. Now, this is a pretty unsatisfying solution, because we'd of course want a group that abandoned its discriminatory policy in good faith (or even just to get the money) to be able to get the money. It makes no sense to withhold funds from a group on the basis of some past, now abandoned policy; it certainly makes no sense to say that the First Amendment requires it if the government wants to viewpoint discriminate in funding. Yet if the condition is forward-looking, I think AID says it impermissibly leverages.

Posted by: Asher Steinberg | Jun 22, 2013 1:23:37 AM

The Court also makes a distinction between mere selection criteria and the somewhat oblique operation of the pledge. This may mean that states and municipalities could state that one of their selection criteria in the provision of services to a diverse population is nondiscrimination on the basis of sexual orientation, just as USAID probably could have filtered NGOs on the basis of their prostitution-related activities rather than asking them to represent that their policy on such matters matched the government's.